Monday, 20 August 2012

Protection of Women Against Sexual Harassment at Workplace Bill, 2010

The Bill was introduced on December 7, 2010 in the Lok Sabha and referred to the Standing Committee on HRD, which tabled its report on December 8, 2011.It was passed by the Lok Sabha in August 2012.

The Indian Penal Code covers criminal acts that outrage or insult the ‘modesty’ of women. It does not cover situations which could create a hostile or difficult environment for women at the work place. The Supreme Court in 1997 (Vishaka judgment) laid down guidelines to protect women from sexual harassment.

This Bill becomes pertinent in the context of the changing economy characterized by casualization and informalisation of work. These trends place a large section of workers outside the framework of protective legislation. Also the dilution of the role of labour inspectors under the Industrial Disputes Act has led to the use of extreme exploitative practices by employers, supervisors and contractors. Thus the Bill to protect working women from sexual harassment comes at a time when the government’s macro-industrial and labour policies have strengthened the very processes which make them vulnerable to sexual harassment in the first place.

Highlights of the Bill

Definition:Sexual harassment includes any unwelcome act or behaviour such as physical contact and advances, a demand or request for sexual favours or making sexually coloured remarks or showing pornography. The acts or behaviour — direct or by implication — will also include any other physical, verbal or non-verbal conduct of a sexual nature.

Wide ambit: covers organized, unorganized sector and domestic work. Unorganized sector means any enterprise engaged in the production of goods and services of any kind and that employ less than 10 workers.

Redressal Mechanism:

Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.

The Complaints Committees have the powers of civil courts for gathering evidence.

The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.

Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.

It also provides safeguards against false or malicious charges.

Concerns about the Bill:

Women in agriculture and agriculture-related work are not covered in this Bill, as this sector of work is not mentioned.

Unlike sexual harassment legislation in many other countries, this Bill does not provide protection to men. Data from countries such as the USA show that more and more men are filing sexual harassment claims, often against their male superiors.

If a complaint is found to be “malicious” or a woman has produced a “misleading document,” she is liable for punishment. This will discourage a victim of sexual harassment from filing a complaint because she risks losing her job. This clause is directly opposed to the Supreme Court guidelines, which had specifically mandated protection of the complainant against victimisation.

The Bill has a specific clause, 16, that prohibits publication of the identity of the accused even if he is found to be guilty of sexual harassment.

There could be feasibility issues in establishing an Internal Complaints Committee at every branch or office with 10 or more employees.

The Internal Complaints Committee has been given the powers of a civil court. However, it does not require members with a legal background nor are there any provisions for legal training.

The Bill also requires clarity on the inclusion of the armed forces and all paramilitary forces within its purview. This is because of (a) increasing number of women being employed in the defence services; (b)women who have faced harassment from the armed forces can also access justice through this law.

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